Extra-curial Punishment (Vic)

Extra-curial punishment is serious loss or detriment imposed on an offender other than that imposed by a court. Such punishment can take many forms, including physical or psychological injury, public condemnation, loss of employment prospects, and deportation. There is no specific requirement for a court in Victoria to consider extra-curial punishment when sentencing an offender, but a court is entitled to consider it as a mitigating factor.

Legislation

The Sentencing Act 1991 allows sentences to be imposed for reasons of punishment, deterrence, rehabilitation, denunciation, community protection or a combination of these. Section 5 requires the court to consider any “mitigating factor concerning the offender or of any other relevant circumstances” when sentencing an offender. This provides an avenue for the court to incorporate extra-curial punishment in a sentence.

The weight to be given to extra-curial punishment depends on the particular facts and circumstances of each case. Considerations include:

• the nature and size of the types of extra-curial punishment;
• the extent to which the extra-curial punishment relates to the conduct of the offence;
• the effect of the hardship caused by the extra-curial punishment, in real terms.

Any court that imposes extra-curial sentencing is expected to clearly articulate the reasons for doing so, given the relative indeterminate nature of such sentencing.

Injuries or harm stemming from offending

An offender may be left with left with some physical or psychological disability as a consequence of committing a crime. For instance, a drug producer may have been injured when their drug lab exploded, or an arsonist may have been burned as a result of a fire they lit.

However, there must be a sufficient connection between the offending and the injuries or harm suffered by the offender to establish this hardship as extra-curial punishment. Injuries sustained by the offender during the offence that result inadvertently or as a result of misadventure are not considered extra-curial punishment.

Extra-curial punishment may not apply where an offender is shot by police during the commission of a crime, or where an intruder is injured in an attack by a resident defending their home.

Public condemnation and opprobrium

This is a common hardship claimed as extra-curial punishment. It is argued on the basis that a high-profile offender attracts greater vilification, adverse publicity and public humiliation as a result of their crimes than other offenders.

This category of extra-curial punishment is controversial for several reasons:

• a fundamental purpose of sentencing is to denounce the offender’s conduct, so it is contradictory that this denunciation should, at the same time, be a basis for mitigation of a sentence;
• public scorn can emanate from a variety of sources, and depends on the type of offence and the notoriety of the offender, making the level of opprobrium impossible to measure or quantify;
• it can divide offenders indefensibly into classes of offenders based on privilege – those with enviable careers or social positions or wealth may have their sentences mitigated while those who are jobless or who have low living standards may be penalised to the full force of the law.

DPP v Pusey

In March 2020, Richard Pusey was pulled over by police for speeding on a Melbourne freeway. A truck then ploughed into four police officers at the scene, killing them. Rather than help the officers, Pusey filmed the carnage, including dying officers, with commentary. He convicted of several offences, including committing an act that outrages public decency contrary to the common law.

Media coverage of the event included headlines labelling Pusey as “vile” and “the devil”. He received death threats, his home was damaged, the garage door of his home was painted with the word “vermin”, and were eggs thrown at home. In prison, he was held in a protection unit, and at times was placed under observation due to suicidal ideation. The judge stated Pusey’s conduct had attracted an “enormous amount of public antipathy” and the consequences of this could be considered as a form of extra-curial punishment.

Employment deprivation

Loss of a career, professional reputation, potential earnings and employment prospects are common themes in this category. An offender can be dismissed from a job and prevented from pursuing a career in certain profession, such as law and accountancy, as a result of a conviction. Unlike other forms of extra-curial punishment, there is a direct connection between the offending and the reduced employment opportunities for the offender.

The relevance and/or weight to be given to the employment consequences for an offender can be influenced by whether the offence was connected to the offender’s employment or committed while they were working in that occupation.

It has been argued that wider social issues need to be considered by a court so as not to compound disadvantage of an already unemployed offender.

Deportation

A term of imprisonment of one year or more can result in a failure to meet the “character test”, which must be passed to obtain and maintain a migration visa to Australia. If a visa-holder commits a crime and is sentenced to more than one year in prison, their visa is automatically cancelled and they become an unlawful non-citizen, subject to deportation. In some criminal cases in Victoria, deportation or the risk of it has been deemed an irrelevant consideration but in others is has been deemed to constitute a hardship to the offender.

DPP v Kamal

In April 2019, Siti Kamal attempted to blackmail a couple in Melbourne, after the couple pleaded on social media for the return of a lost phone that contained images of their terminally ill infant daughter. Kamal, who did not have the phone, demanded money for the safe return of it. She was convicted and jailed for 3 years.

The Malaysian national’s defence lawyer argued that Kamal’s deportation after serving her sentence would impose an additional emotional burden and should be considered extra-curial punishment. The judge disagreed, stating her case “does not involve a loss of opportunity or return to a situation of deprivation” and that deportation would not cause “emotional difficulty that would add to the service of a term of imprisonment”.

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